February 1995

Apparent Agency

Mobil Oil v. Bransford
20 Fla. L. Wkly. S11 (Fla. 1995)

This is the case I left out of the last Update because I couldnt quite figure out
what to say about it. The court has wrought a major change in the law of apparent agency
in franchise situations.

This case involves an attack on the plaintiff by an employee of a gas station that was
operated by a franchisee.

The court holds that as a matter of law, the oil companys ownership of the
property on which the franchisee operated the gas station, the sale of the oil
companys products there, the use of its logo throughout the premises, and the
franchise support provided does not create apparent agency.

The court states: "it is well understood that the mere use of franchise logos and
related advertisements does not necessarily indicate that the franchisor has actual or
apparent control over any substantial aspect of the franchisees business or
employment decisions. Nor does the provision of routine contractual support services
refute this conclusion." The court placed heavy reliance on what it assumes to be
common knowledge, and on the contractual provision that the gas station operator was an
"independent contractor."

The court also holds that there is no special rule for gas stations, and that apparent
agency analysis is the same in any franchise situation.

The elements of apparent agency are: "(a) a representation by the purported
principal; (b) reliance on that representation by a third party; and (c) a change in
position by the third party in reliance on the representation." What the court
appears to do here is to hold as a matter of law that there can be no reliance, and no
representation in the use of the oil companys logo.

The court distinguishes Orlando Executive Park v. Robbins, 433 So.2d 491 (Fla.
1993) because in that case the franchisor actually operated several components within the
project where the attack on the plaintiff took place.

If you have a franchisor liability case, you can try to salvage it in several ways. You
can factually distinguish your case, as for example, when there is actual control by the
franchisor sufficient to establish actual agency. You can also try to fit yourself into
the Orlando Executive Park facts if the franchisor actually operates part of the
complex on which the business is located. If the franchisor owns the land on which the
franchise is operated, you may want to take a look at whether the landlord retains any
actual control over any part of the property; also look at Restatement of Torts, Second,
§359, which makes a lessor liable under certain circumstances where it leases property
for a purpose open to the public, in a dangerous condition, knowing that the lessee will
not change it; and at the law of nuisance, which makes a lessor liable in some situations
when it leases property containing an actual or incipient nuisance. See Bowen v.
Holloway, 255 So.2d 696 (4th DCA 1971).

If you have any success with any of these, please let me know.

Attorney Fees

Bass v. State Farm Life Ins. Co.
20 Fla. L. Wkly. D345 (3d DCA 1995)

Dont forget to plead and move for attorneys fees at the trial level. The
plaintiff won a verdict against an insurance company and moved for attorneys fees only
under the offer of judgment statute and rule. The trial court denied the motion. The
insurer appealed the verdict and the plaintiff won, and the court of appeal remanded for
an award of appellate attorneys fees under §627.428. The plaintiff then moved for an
award of trial attorney fees as well pursuant to §627.428. The court of appeal held that
because of its limited mandate on appellate attorneys fees, and because the motion was
filed 22 months after final judgment, the trial court properly denied trial level
attorneys fees. The trial court has continuing jurisdiction to award attorneys fees after
final judgment, but the motion must be filed "within a reasonable time." Finkelstein
v. North Broward Hosp. Dist., 484 So.2d 1241 (Fla. 1986).

Costs

The court holds that the Statewide Uniform Guidelines for Taxation of Costs are only
guidelines. It was not an abuse of discretion for the trial court to award costs to the
plaintiff for travel expenses incurred by plaintiffs counsel in taking some out of
state depositions, even though the guidelines dont include such costs.

Damages

Auto-Owners Ins. Co. v. Tompkins
20 Fla. L. Wkly. S49 (Fla. 1995)

Resolving a conflict among the districts, the Supreme Court holds that a finding of
permanent injury is not required to sustain an award of future economic damages. Future
economic damages are recoverable when they are established with reasonable certainty. A
permanent injury is not a prerequisite to recovering future economic damages, but it is a
significant factor in establishing the reasonable certainty of future damages.

Destruction of Evidence

Brown v. City of Delray Beach
20 Fla. L. Wkly D353 (4th DCA 1995)

The court reverses a summary judgment for the city, which destroyed evidence pertaining
to an alleged hit and run. The plaintiff contended that the city would not allow plaintiff
access to the physical evidence while a criminal investigation was pending, but assured
the plaintiff the evidence would be preserved. After charges against the driver were
dropped, the city destroyed the evidence. The plaintiff contended that this prevented his
experts from being able to form an opinion, and prevented plaintiff from proving his case
against the driver. The court held (1) that the plaintiff did not have to prove that he
would have succeeded against the driver if the evidence had not been destroyed and (2)
that the city was not entitled to immunity, but owed a duty to the plaintiff because of
the special relationship created by its repeated assurances that it would take care of the
evidence for the plaintiff.

Election of Remedies

Lowry v. Logan
20 Fla. L. Wkly. D363 (1st DCA 1995)

It was error to enter summary judgment against the plaintiff based on election of
remedies where a genuine issue remained whether the plaintiff was an employee or an
independent contractor, and if so whether he was acting in the scope of his employment,
and where the plaintiff never signed the notice of injury filed by his employer and never
filed a claim for benefits, even though some benefits were paid by the workers comp
carrier. To constitute an election of remedies, the workers comp remedy must be pursued to
a determination or conclusion on the merits. Mere passive acceptance of some benefits doe
not constitute an election. Wisehart v. Laidlaw Tree Service, Inc., Fla. 2d DCA
1991); Velez v. Oxford Dev. Co., 457 So.2d 1388 (3d DCA 1984), rev. den., 467 So.2d
1000 (Fla. 1985).

Fabre

Ive listened to an audio tape of the oral argument in the Florida Supreme Court
in Tallahassee Memorial Regional Medical Center v. Wells, the pending case on
calculation of the setoff. The argument was heard on December 7. It is always difficult to
predict from an oral argument how a case is going to come out. However, the Court did ask
several questions indicating a concern about distinguishing between economic and
noneconomic damages. All in all, the argument seemed to go pretty well for the plaintiffs.
The defendants seem to be unhappy with their argument, and filed an unusual motion with
the court asking for permission to file a supplemental memorandum giving better answers to
some of the questions than the ones they gave in the argument. The Supreme Court has
denied the motion.

I hope the court will reach a decision soon, so that we can all know what to advise our
clients about the effect of settlements on any verdicts they may get against nonsettling
tortfeasors. Meantime, I recommend allocating specific portions of the settlement to
economic and non-economic damages, so that the issue will be preserved in case the court
ultimately allows that distinction.

Insurance -- Bad Faith

Section 627.351(4)(c), Fla. Stat., provides the JUA and its members immunity from
liability in some civil actions. This court holds that the immunity issue is not
jurisdictional, but an affirmative defense which can be waived, as it was here, by the
failure to plead it.

Insurance -- Exclusions

Brown v. The Travelers Ins. Co.
20 Fla. L. Wkly. D291 (4th DCA 1995)

The insurer under a homeowners policy may not avoid coverage under the fire coverage
section of a policy based upon the intentional acts exclusion in the liability section of
the policy. This case has a good discussion of the rules applicable in interpreting
insurance policies.

Insurance -- UM

In 1992, the legislature amended the UM statute to provide, in §627.727(6), that a UM
carrier wishing to preserve its subrogation rights by refusing to allow the insured to
settle with an underinsured motorists liability carrier must pay the insured the
amount of the offer from the liability carrier. This court holds that the statute cannot
be applied to a policy executed before its effective date and is unconstitutional. The
court certifies the question to the Supreme Court.

Jury Misconduct

Powell v. Allstate
20 Fla. L. Wkly. S37 (Fla. 1995)

In this UM action, the plaintiffs were black, of Jamaican origin. The jury returned a
verdict far below the amount plaintiffs were seeking. After the trial, a juror contacted
the judge and one of the plaintiffs attorneys and told them that jurors made racist
remarks and jokes throughout the trial and deliberations. The judge interviewed this
juror, but refused to conduct an evidentiary hearing, or to grant a new trial. The court
held that such racist comments are overt acts of misconduct which might have prejudicially
affected the verdict. The trial court is required to conduct an inquiry to determine
whether the comments were made. If they were made, the trial court is not permitted to
conduct an inquiry into the jurors subjective thoughts or whether they were affected
by the comments. If the court finds the comments were made, a new trial is mandatory. The
plaintiff has moved for rehearing on this procedural point, contending that an evidentiary
hearing is not necessary.

The Supreme Court draws a fine line between the jurors subjective thoughts, which
inhere in the verdict, and their statements. The court analogizes these statements to
receipt of prejudicial nonrecord information. While carefully guarding the sanctity of the
jury room, the court decisively rules in favor of the right to a fair trial before an
impartial jury and to equal protection of the law.

The powerful language in this decision extends to "color, religion or ethnic
origin." An open question is whether it will also apply to gender.

I was proud to participate in the preparation of a joint amicus brief on behalf of the
Academy of Florida Trial Lawyers and the Florida Association for Women Lawyers in this
case. With me on the amicus brief were Roy Wasson, Sally Richardson and Marisa
Mendez. Im proud of the Florida Supreme Court for once again taking a strong
stand against racial prejudice in the courtroom.

Wright v. CTL Distribution, Inc.
20 Fla. L. Wkly. D328 (2d DCA 1995)

This decision involves facts similar to those in Powell v. Allstate. Following
that case, the court holds that an evidentiary hearing is required based on allegations
that jurors said they did not want to give the plaintiff anything because she was a fat
black woman on welfare and would blow the money. In addition, the plaintiff alleged that
the jury asked the bailiff a question on the award of past pain and suffering and the
bailiff answered the question instead of referring it to the judge. The court held that
this also required an evidentiary hearing to determine if it occurred. If it did, a new
trial is required. Note that the plaintiff presented these allegations in the form of an
affidavit from one of the jurors. This is required pursuant to Baptist hospital v.
Maler, 579 So.2d 97 (Fla. 1991).

Jury Selection

Betancourt v. State
20 Fla. L. Wkly. D212 (3d DCA 1995)

The trial court erred in conducting an inquiry into the defenses exercise of a
peremptory challenge, and disallowing the challenge, where the state gave no reason for
its objection other than the fact that the juror was hispanic, and the defendant gave the
race neutral reason that the juror had been foreman in a prior jury and was a
"leader".

Thompson v. State
20 Fla. L. Wkly. D216 (3d DCA 1995)

The prohibition against discrimination in the use of peremptory challenges is equally
applicable to discrimination against men and women.

Med Mal

St. Anthonys Hospital v. Lewis
20 Fla. L. Wkly. D235 (2d DCA 1995)

The two year med mal statute of limitations applies to claims against a hospital for
the negligent selection and retention of a physician. Compliance with all presuit
procedures is also required. The appellate court granted the extraordinary remedy of
certiorari to quash the trial courts denial of the hospitals motion to
dismiss.

In this action for malpractice for negligent interpretation of a mammogram, it was
reversible error to instruct the jury on the standard of care based on §766.102(3)(a).
That section provides that if the injury is "claimed to have resulted from the
affirmative intervention of the health care provider," the plaintiff must show that
the injury was not within the necessary or reasonably foreseeable results of the procedure
if the procedure was carried out in accordance with the prevailing professional standard
of care by a reasonably prudent similar health care provider.

The court holds the instruction is confusing (really its incomprehensible), and
that it does not apply to a misdiagnosis. It was also reversible error to refuse to
instruct the jury on concurring cause and aggravation of a pre-existing condition.
Congratulations to Karen Haas and Jan Gallagher.

Alachua Gen. Hosp. v. Stewart
20 Fla. L. Wkly. D365 (1st DCA 1995)

The defendant hospital, which was charged with vicarious liability for negligence of a
doctor who was alleged to be an agent of the hospital is entitled to conduct ex parte
interviews with doctors who provided treatment, even though the hospital denied in its
answer that any doctors were its agents. The court relies on §455.241(2) which waives
confidentiality if the health care provider is or expects to be a malpractice defendant.
The court held that the plaintiff was stuck with the allegations in his pleadings, and the
defendant was entitled to talk with former alleged employees who could only have gained
their knowledge of the plaintiffs condition while in its alleged employ. This issue
is currently pending before the Florida Supreme Court in Richter v. Bagala, 19 Fla.
L. Wkly. D1817 (2d DCA 1994) as well as before the Third District en banc. See Johnson
v. Mt. Sinai Medical Center, 615 So.2d 257 (Fla. 3d DCA 1993).

Nursing Homes

The plaintiff, a former patient, sued the nursing home for negligence and violation of
Chapter 400, the Nursing Home Bill of Rights. The appellate court held that Chapter 766
might apply to some of the plaintiffs allegations against the nursing home, such as
failure to properly treat pressure ulcers, and failure to keep plaintiffs catheter
free from leakage. The court held that the plaintiff was not required to divulge the
identity of her experts, despite defendants theory that in a medical negligence case
the plaintiff must retain and disclose her expert witnesses, who were protected by the
work product privilege. The court also held that it was not error to prohibit the
plaintiff from contacting former employees of the defendant, limited to those former
employees whose actions were alleged to be the basis of the defendants liability.
See also Rule 4-4.2, Florida Rules of Professional Conduct, and the Comment to it. The
court acknowledges there is a split of authority on contact with former employees, ranging
from decisions allowing communication with any former employee provided no other privilege
is violated, to decisions prohibiting any communication with former employees. This case
falls somewhere in between.

Offer of Judgment

Crayne v. Krayne
20 Fla. L. Wkly. D256 (4th DCA 1995)

Where the offer of judgment was conditioned on the offerees dismissal of a
separate pending action, the condition was not authorized and the offer was invalid.
Therefore, no attorneys fees could be awarded as a result of the rejection of the offer.

The entitlement to attorneys fees under §57.105 or §768.79 does not have to be pled,
but may be raised by motion filed after a voluntary dismissal by the plaintiff. The
plaintiff cannot avoid the award of fees by a voluntary dismissal.

Premises Liability

The defendant Publix grocery store owed no duty to its invitee to keep the parking lot
safe where Publix leased space in a commercial shopping center containing several tenants
but the landlord retained the sole responsibility under the lease of maintaining the
common areas including the parking lot used by business invitees of the various tenants.
The obligation for keeping the parking lot safe against criminal acts by third persons
belonged to the owner, not to the tenant. However, if Publix had actually controlled the
parking lot, it could have been liable despite the terms of the lease.

The tenant has no duty to warn its business invitees about potential criminal attacks
in the parking lot exclusively maintained by the shopping center owner. The court holds
that Combs v. Aetna Ins. Co., 410 So.2d 1377 (Fla. 4th DCA 1992), imposing a duty
to warn, is inapplicable because it involved an improperly marked, lighted marker, which
the court describes as a "static" condition, for which a warning would have done
some good. This was a case in which the issue of Fabre apportionment with an intentional
tortfeasor was raised but not decided by the court.

Punitive Damages

W.R. Grace & Co. v. Waters
638 So.2d 502 (Fla. 1994)

Although I discussed this case in the June, 1994 Update, there was a specific request
for more information at the last DCTLA meeting, and DCTLA President Ervin Gonzalez
has just published an article about it in the February Florida Bar Journal. In Waters, the
Supreme Court outlined procedural requirements for awarding punitive damages. Ervins
article explains how those requirements should work: On motion of the defendant, the trial
court is required to bifurcate the trial. During the first portion of the trial, the jury
should hear evidence regarding liability, compensatory damages, and entitlement to
punitive damages. The verdict form for the initial trial should only refer to these
issues. The amount of punitive damages should not be discussed in this phase, nor should
it be on the verdict form.

Once the jury determines these issues, a second phase will be conducted on the amount
of punitive damages. In this second phase, the plaintiff may introduce evidence regarding
the defendants net worth and other financial information, and the defendant may
introduce opposing evidence, including lack of ability to pay, prior punitive damages
awards, or other relevant financial information. After that evidence has been presented,
there should be closing arguments and a verdict form that asks the jury to assess the
amount of punitive damages.

Of course, before you even get to this, the plaintiff must demonstrate to the court
that sufficient evidence exists to support the punitive damages claim. §768.72, Florida
Statutes. The plaintiff is not even allowed to plead punitive damages until this showing
is made.

Thanks to Judge Philip Bloom for calling my attention to the need for further
discussion on this issue, and to Ervin for explaining it so clearly.

Release

The plaintiff alleged that the defendant knew she had trouble with the English language
and got her to sign a release by telling her that it was a receipt pertaining only to
money paid. The trial court entered summary judgment for the defendant on the release and
the court of appeal reversed, holding that the defendants misrepresentation as to
the "contents, import or legal effect" of the release would be sufficient to
avoid the release. The court notes that there is also authority that a release may be
rescinded based on a unilateral mistake of fact.

Service of Process

Wyatt v. Haese
20 Fla. L. Wkly. D290 (4th DCA 1995)

This case is a textbook illustration of how not to obtain service of process. An $8.3
million verdict was overturned because of lack of service. The case arose out of an auto
accident. Plaintiffs first attempt at substituted service on the Secretary of State
under §48.161 was invalid because they failed to allege that the defendant was a
non-resident or was concealing himself and failed to send notice of service to the
defendant or to file an affidavit as required by §48.161. The second attempt was invalid
because, although the complaint was amended, two attempts to mail notice to the defendant
were returned "unclaimed" and "not at this address," and no affidavit
was filed. The third attempt, service by publication, was invalid because such service is
not authorized in negligence actions.

Settlement

In these related appeals, the court wisely allowed the plaintiff to avoid some of the
pitfalls involved in the signing of releases. The plaintiffs, husband and wife, were
injured in a car accident. The husband settled with several insurance companies for the
policy limits, including State Farm and Allstate. The husband and wife signed preprinted
release forms provided by the insurance companies, which released all claims.

Subsequently, the wife filed suit for her own personal injuries. The defendants
asserted the releases as a defense. The wife contended that, as to her claim, all parties
to the release intended only to release her loss of consortium claim, and not her own
injuries, and filed supporting affidavits of their own attorneys. The defendants did not
contradict the affidavits. The court held that this was sufficient evidence of a mutual
mistake to prevent summary judgment based on the releases. Further, it was error to refuse
to allow the wife to amend her complaint a few days before the summary judgment hearing to
add a count for reformation of the release due to mutual mistake.

Circuit Judge Juan Ramirez, sitting as an Associate Judge in the Fourth
District, wrote both of these well reasoned opinions. See Connecticut General Life Ins.
Co. v. Dyess, 569 So.2d 1293 (5th DCA 1990), rev. denied, 581 So.2d 1307 (Fla. 1991)
for the story of a plaintiff who was not so fortunate. Read all releases carefully and
limit the language where it is appropriate to preserve any claims you dont want to
release.

City of Largo v. Lagrande
20 Fla. L. Wkly. D399 (2d DCA 1995)

Reversing §57.105 attorneys fees, the court holds that the city had non-frivolous
grounds to challenge, in a contribution action, the settlement of the underlying case
where there was a great difference between the settlement amount and the claim for damages
asserted against the city, and where the underlying case was settled after less than a
year.

Sovereign Immunity

While holding that there is no duty and no liability, the court certifies to the
Supreme Court the question whether the Dept. of Corrections may be held liable as a result
of the criminal acts of an escaped prisoner. This case has a good discussion of the issues
of duty and sovereign immunity.